348 F.3d 157 | 6th Cir. | 2003
Defendants-Appellants, Before: COLE, GILMAN, and BRIGHT, Circuit Judges. [*]
(cid:45) (cid:45)
_________________ C AMPAIGN FOR F AMILY (cid:45) (cid:45) F ARMS , an Unincorporated COUNSEL (cid:45) Association of Membership (cid:45) Organizations, ARGUED: Matthew M. Collette, UNITED STATES (cid:45) DEPARTMENT OF JUSTICE, Washington, D.C., Susan E. Defendant-Appellee. (cid:45) Stokes, FARMERS LEGAL ACTION GROUP, INC., St. (cid:45) Paul, Minnesota, for Defendants. Edward M. Mansfield, No. 02-2338 (cid:45) BELIN LAMSON McCORMICK ZUMBACH FLYNN, Des (cid:45) M ICHIGAN P ORK P RODUCERS Moines, Iowa, for Plaintiffs. ON BRIEF: Matthew M. (cid:45) A SSOCIATION , I NC ., et al., Collette, Douglas N. Letter, UNITED STATES (cid:45) DEPARTMENT OF JUSTICE, Washington, D.C., Susan E. Plaintiffs-Appellants, (cid:45) Stokes, David R. Moeller, FARMERS LEGAL ACTION (cid:45) v . (cid:45) (cid:45)
BOYDEN, TIMMONS, DILLEY & HANEY, Grand Rapids, For the reasons stated below, we AFFIRM the grant of Michigan, for Plaintiffs.
summary judgment by the district court. _________________ I. BACKGROUND OPINION As part of the Food Security Act of 1985, Congress enacted _________________ the Pork Act. The purpose of the Pork Act is to: R. GUY COLE, JR., Circuit Judge. Michigan Pork [A]uthorize the establishment of an orderly procedure for Producers Association, Inc., et al. (“MPPA”) and the financing, through adequate assessments, and carrying Secretary of Agriculture (the “Secretary”) (collectively out an effective and coordinated program of promotion, “Appellants”) appeal the grant of summary judgment to research, and consumer information designed to— Appellees Campaign for Family Farms, et al. (“CFF”). The
(A) strengthen the position of the pork industry in the United States District Court for the Western District of marketplace; and Michigan declared the Pork Promotion, Research and (B) maintain, develop, and expand markets for pork and Consumer Information Act (the “Pork Act”), 7 U.S.C. § 4801 pork products. et seq. , and the Pork Promotion Order issued thereunder, 7 C.F.R. § 1230, unconstitutional and issued an injunction 7 U.S.C. § 4801(b)(1). The Pork Act provides for the creation terminating all activities under the Pork Act and the Pork of a National Pork Producers Delegate Body (“Delegate Promotion Order. The Act mandates that pork producers and Body”). 7 U.S.C. § 4806. The Delegate Body – which importers (collectively “pork producers”) pay assessments,
determines the amount and distribution of the assessments – known as “checkoffs,” to fund promotion, research, and consists of pork producers, who are nominated by the state consumer information to benefit the pork industry. pork producers associations and appointed by the Secretary, The district court held that requiring the payment of these and pork importers, who are appointed by the Secretary based assessments violates the First Amendment rights of pork on the amount of assessments collected from importers. 7 producers by compelling them to subsidize speech with which U.S.C. § 4806(b)(1). The Pork Act also provides for the they do not agree. Appellants argue that: (1) the assessments creation of a 15-member National Pork Board (“the Board”), subsidize a government program that advances the 7 U.S.C. § 4808 (a)(1), whose nominees are chosen by the government’s policy of promoting pork consumption, and, Delegate Body and appointed by the Secretary. The Board is therefore, are immune from First Amendment scrutiny; to develop and implement programs that fulfill the statutory (2) even if not part of a government program, the assessments mandates of promotion, research, and the provision of are not compelled speech; (3) the Pork Act program that consumer information. 7 U.S.C. § 4808(b)(1). Although the requires the collection of assessments, is a lawful restraint on United States Department of Agriculture (“USDA”) provides commercial speech; and (4) even if the use of assessments for some oversight over the Board, its Executive Vice President Nos. 02-2337/2338 Mich. Pork Producers Ass’n, 5 6 Mich. Pork Producers Ass’n, Nos. 02-2337/2338
et al. v. Veneman, et al. et al. v. Veneman, et al. noted that it “is not to be considered as a governmental 1999, after CFF filed petitions with the USDA seeking a entity/agency or a government contractor.” Morever, the referendum on the termination of the Pork Checkoff Program, members of the Board receive no compensation from the then-Secretary Glickman decided to conduct a voluntary, government, and are reimbursed for expenses from the “fairness” referendum on the checkoff program’s future. collected assessments. 7 U.S.C. § 4808(a)(1)(6).
On January 11, 2001, Secretary Glickman announced that Because the Pork Act explicitly states that its programs a majority of individuals had voted to terminate the program, “shall be conducted at no cost to the Federal Government,” 7 and that as a result, he would terminate it. MPPA filed suit U.S.C. § 4801(b)(2), the Act provides for funding through the next day to enjoin the program’s termination. Mich. Pork mandatory assessments. 7 U.S.C. § 4809 et seq . In Producers Ass’n, Inc. v. Campaign for Family Farms , 174 F. accordance with the provisions of the Pork Act, an initial Supp. 2d 637, 639 (W.D. Mich. 2001) (“ MPPA I ”). On Pork Promotion Order, establishing the Pork Checkoff January 19, 2001, the district court issued a temporary Program, was issued by the Secretary in 1986. An initial restraining order pending hearing of the preliminary referendum on the Pork Checkoff Program was held in 1988, injunction motion. Id . Between the restraining order and the and it was approved with the support of nearly eighty percent scheduled hearing, newly-appointed Secretary of Agriculture of pork producers. Payments are assessed against all Veneman decided to preserve the Pork Checkoff Program, producers of porcine animals that are sold or slaughtered for albeit with the funds collected by the Pork Checkoff Program sale, and all importers of porcine animals, pork, or pork administered directly by the Board instead of by the NPPC. products. [1] 7 U.S.C. § 4809 (a)(1). The Board receives all On June 25, 2001, the Supreme Court in United States v. assessments, and distributes them according to formulas United Foods , 533 U.S. 405 (2001), invalidated – as contrary detailed in the Pork Act. Although most of the funds support
to the First Amendment’s prohibition against compelled generic advertising, some of the money is spent to promote speech – the Mushroom Checkoff Program created by the specific brands of pork products.
Mushroom Promotion, Research, and Consumer Information CFF, a non-profit advocacy group consisting of a coalition Act, 7 U.S.C. § 610 et seq. (the “Mushroom Act”). Like the of four family farm organizations as well as individual hog Pork Act, the Mushroom Act required producers and farmers, is devoted to “ensuring the continued existence of importers of mushrooms to pay assessments that were family farms, particularly hog farms.” Since 1998, CFF’s primarily used to fund generic advertising that promoted the primary goal has been to end the Pork Checkoff Program. sale of mushrooms. CFF subsequently added to its complaint CFF believes that the advertising funded by the Pork a First Amendment challenge to the Pork Act. MPPA I , 174 Checkoff Program favors those who sell processed meats, F. Supp. 2d at 639. On December 4, 2001, the district court misrepresents the safety and desirability of large commercial upheld the legality of Secretary Veneman’s decision to farming, and downplays the benefits of family farms. In May preserve the Pork Checkoff Program. MPPA I , 174 F. Supp.
2d at 643-44. The court explicitly stated, however, that its ruling had no effect on the other claims of the parties, including CFF’s First Amendment challenges. Id. at 648. [1] In 2002, the Farm Security and Rural Investment Act of 2002 was
passed, exemp ting organic hog farmers from p aying the assessments. Pub . L. No . 107 -171 , §1(a ), 116 Stat. 13 4 (2002 ). Nos. 02-2337/2338 Mich. Pork Producers Ass’n, 7 8 Mich. Pork Producers Ass’n, Nos. 02-2337/2338
et al. v. Veneman, et al. et al. v. Veneman, et al. CFF then voluntarily dismissed all of its remaining Since at least one appellee in this action has standing, there is challenges to the Pork Checkoff Program, save for its First no need to consider MPPA’s standing challenges to the Amendment claims. Mich. Pork Producers Ass’n, Inc. v. individual appellees or to CFF. See, e.g. Bowsher v. Synar , Campaign for Family Farms , 229 F. Supp. 2d 772, 777 (W.D. 478 U.S. 714, 721 (1986) (explaining that if one plaintiff has Mich. 2002) (“ MPPA II ”). The parties filed cross-motions for standing, it is unnecessary to consider the issue of standing as summary judgment. On October 25, 2002, the district court to other plaintiffs in the action). granted CFF’s summary judgment motion, holding that the C. First Amendment Challenge First Amendment prohibited the Pork Checkoff Program and enjoining it in its entirety. Id. at 792. MPPA and the
1. Governmental Speech Secretary filed timely Notices of Appeal, and this Court subsequently granted a stay of the district court’s injunction
We first consider whether the subsidies generated under the pending the appeal. Pork Act are properly analyzed as private speech or as governmental speech. The Supreme Court has made clear
II. ANALYSIS
that the government may dictate the content and even the viewpoint of speech when the government itself is the
A. Standard of Review speaker: “[V]iewpoint-based funding decisions can be We review the district court’s grant of summary judgment sustained in instances in which the government is itself the de novo . See Watkins v. City of Battle Creek , 273 F.3d 682, speaker....” Legal Servs. Corp. v. Velazquez , 531 U.S. 533, 685 (6th Cir. 2001). Summary judgment is granted when the 541 (2001). But the Court has yet to consider whether record, viewed in the light most favorable to the nonmoving programs similar in nature to the Pork Checkoff Program party, reveals that there is no genuine issue of material fact constitute governmental speech – the Court declined to do so such that the moving party is entitled to judgment as a matter in United Foods because the government had failed to raise of law. F ED . R. C IV . P. 56(c); see also Celotex Corp. v. the governmental speech argument in the court below. United Catrett , 477 U.S. 317, 322 (1986). Foods , 533 U.S. at 417.
B. Standing We conclude that the pork industry’s extensive control over the Pork Act’s promotional activities prevents their attribution Plaintiffs have standing under Article III to challenge the to the government. First, the primary purpose of the Pork Act Pork Act. MPPA challenges the standing of CFF, claiming is to strengthen the market position of the pork industry and that: (1) several named appellees lacked standing because increase the domestic markets for pork and pork products. 7 they do not pay assessments under the Pork Act and are U.S.C. § 4801. See Keller v. State Bar of Cal. , 496 U.S. 1, 13 unaffected by these provisions of the Pork Act requiring such (1990) (categorizing as private the speech of an organization payments; and (2) CFF does not have standing as an created “not to participate in the general government of the association under the test articulated in Hunt v. Wash. Apple State, but to provide specialized professional advice to those Adver. Comm. , 432 U.S. 333, 343 (1977). In its brief to this
with the ultimate responsibility of governing the legal Court, however, MPPA concedes that “two individuals, Mr. profession.”). Second, unlike the typical scenario in which Smith and Mr. Jones, had standing to pursue their claims.” speech is considered governmental in nature, the programs’ Nos. 02-2337/2338 Mich. Pork Producers Ass’n, 9 10 Mich. Pork Producers Ass’n, Nos. 02-2337/2338 et al. v. Veneman, et al. et al. v. Veneman, et al. funding does not come from general tax revenues. See, e.g. , 2. Compelled Speech Rust v. Sullivan , 500 U.S. 173 (1991); Wells v. City and
With its programs properly characterized as private speech, County of Denver , 257 F.3d 1132 (10th Cir. 2001); Downs v. the constitutionality of the Pork Act turns on whether pork is Los Angeles Unified Sch. Dist. , 228 F.3d 1003 (9th Cir. more like mushrooms or more like peaches. See F.J. 2000), cert. denied , 532 U.S. 994 (2001). The Pork Act’s Dindinger, Free Speech for Mushrooms but not Peaches: funding comes solely from mandatory assessments paid by Economic Regulations after United Foods, Inc., C OLO . L AW . pork producers; the Act specifically forbids the use of 61 (April 2002). In United Foods , the Supreme Court held government funds for its operations, and the Secretary and her that the Mushroom Act – which provided for mandatory staff are reimbursed from the assessments for any time spent assessments that were used primarily to fund the generic working on activities under the Pork Act. 7 C.F.R.
advertising of mushrooms – violated the First Amendment’s § 1230.73(c)(4). prohibitions against compelled speech. Id. at 411. However, Third, the government exercises only limited oversight over in Glickman v. Wileman Bros. & Elliott, Inc. , 521 U.S. 457 the programs. See United Foods , 533 U.S. at 417 (suggesting (1997), the Supreme Court held that the Agricultural that merely pro forma government oversight over a Marketing Agreement Act – which established mandatory promotional program counsels against classifying it as assessments that funded a broad regulatory apparatus that governmental speech). Only one USDA staff member is included, as one of its many programs, promotional responsible for overseeing all of the duties relating to the Pork advertising of California tree fruit – did not constitute
unlawful compelled speech. [2] Checkoff Program, including attending all meetings of the Pork Board and reviewing all advertisements and Because the Pork Act is nearly identical in purpose, communications it develops. The government itself does not
structure, and implementation to the Mushroom Act, the Pork propose or draft any of the advertisements. Indeed, the Act is unconstitutional under the analysis set forth in United trademark for the most recognizable ad, “Pork. The Other Foods . The Pork Act mandates that: White Meat,” is owned by the NPPC, not the government. The Pork Board itself is comprised only of private pork
(3) Nothing in this chapter may be construed to - producers, appointed by the Secretary based on nominations (A) permit or require the imposition of quality standards made by the private state pork producers associations – which for pork or pork products; themselves are run entirely by industry officials. In sum, the costs and content of the speech in question are almost completely the responsibility of members of the pork [2] The federal courts have yet to weigh in on many other agriculture-
industry. The First Amendment does not lie dormant merely promoting programs, including those touting “The Incredible, Ed ible because the government acts to consolidate and facilitate Egg”; “Ah . . . the Power of Cheese”; and “The T ouch ... the Feel of speech that is otherwise wholly private. Cotton ... the Fabric of Our Lives.” See No te, The Co nstitution – It’s What’s for Dinner , 2 W Y O . L. R EV . 617 , 638 (2002). Earlier this year, however, the Eighth Circuit invalidated, as unconstitutional compelled speech, the mand atory assessment pro gram bearing the slogan “B eef – It’s what’s for Dinner.” See Livestock Mktg. Ass’n v. United States Dep’t of Agric. , 335 F.3d 71 1 (8th Cir. 2003).
Nos. 02-2337/2338 Mich. Pork Producers Ass’n, 11 12 Mich. Pork Producers Ass’n, Nos. 02-2337/2338 et al. v. Veneman, et al. et al. v. Veneman, et al. (B) provide for control of the production of pork or pork because the expression that CFF and its members must products; or support “is not germane to a purpose related to an association (C) otherwise limit the right of an individual pork independent from the speech itself.” United Foods , 533 U.S. producer to produce pork and pork products. at 415-16. Finally, we find inapplicable to this case the relaxed
7 §4801(b)(3). This scheme is a far cry from that upheld in scrutiny of commercial speech analysis provided for by Glickman , which – in addition to funding a promotional Central Hudson , and relied upon by Appellants. The Pork campaign – provided for regulated price, output, and quality, Act does not directly limit the ability of pork producers to and also authorized joint research and development projects, express a message; it compels them to express a message with inspections, and even standardized packaging. Glickman , 521
which they do not agree. Even assuming that the advertising U.S. at 461. With the express prohibition on this type of non- funded by the Act is indeed commercial speech, the more promotional regulation, the Pork Act serves but one purpose: lenient standard of review applied to limits on commercial promotion. This case is therefore governed by United Foods .
speech has never been applied to speech – commercial or MPPA attempts to distinguish the Mushroom Act from the otherwise – that is compelled. See Glickman , 521 U.S. at 474 Pork Act, claiming that most of the funds collected by the n.18 (questioning whether “the Central Hudson test, which former were used for generic advertising, whereas only 16 involved restrictions on commercial speech, should govern a percent of the total expenses in the 2001 Budget for all the case involving the compelled funding of speech”). It is one activities funded under the latter were used for generic, thing to force someone to close her mouth; it is quite another nationwide advertising. In fact, the record reflects that the to force her to become a mouthpiece. majority of the Pork Act’s funds support advertising and
3. Remedy promotions. The 2001 Budget called for $29,388,491, or 51 percent of the total expenses, to be used under the category of
Finally, we conclude that the district court properly “Demand Enhancement.” Id. Expenditures in this area were invalidated the Pork Act in its entirety. Because the Act has budgeted as follows: no “severability clause” providing for the preservation of those statutory provisions that comply with the Constitution, Demand Enhancement Programming $2,816,000 we must invalidate the entire statute if the “balance of the Advertising $8,825,000 legislation is incapable of functioning independently.” Alaska Merchandising $5,400,000 Airlines, Inc. v. Brock , 480 U.S. 678, 685 (1987). The very Foodservice $3,697,000 basis for holding that the Act violates the First Amendment – Pork Information Bureau $2,800,000
that its assessment of fees to promote pork is the chief goal of Foreign Market Development/World Trade $5,850,491 the Act, which does not create a broader regulatory program – prevents us from preserving other parts of the statute. See The district court also found that Pork Act programs Livestock Mktg. Ass’n v. United States Dep’t of Agric. , 335 providing for “education” and “research” were designed to F.3d 711, 726 (8th Cir. 2003) (“[T]he fact that the ‘principal further the Act’s promotional goals. MPAA II , 229 F. Supp. object’ of the Beef Act is the very part that makes it at 777. Thus, the use of the assessments to fund advertising unconstitutional, (i.e., compelling funding of generic under the Pork Act is prohibited by the First Amendment Nos. 02-2337/2338 Mich. Pork Producers Ass’n, 13 14 Mich. Pork Producers Ass’n, Nos. 02-2337/2338
et al. v. Veneman, et al. et al. v. Veneman, et al. advertising) [means that] no remaining aspects of the Act can III. CONCLUSION survive.”). It would be paradoxical to conclude
For the reasons stated, we AFFIRM the grant of summary simultaneously that Congress sought only to promote pork judgment by the district court. and that Congress still intended the incidental provisions of the Act to operate independently.
Nor does United Foods instruct otherwise. Appellant contends that: (1) this Court’s decision in that case invalidated only part of the Mushroom Act; and (2) the Supreme Court affirmed the decision of this Court in its entirety. This argument misunderstands both decisions. The lone sentence in this Court’s decision upon which Appellants rely – which states that “[t]he portions of the Mushroom Act of 1990 which authorize such coerced payments for advertising are likewise unconstitutional” – was part of the analysis that distinguished the Mushroom Act from the statute upheld in Glickman , and in its context is most fairly read only as a comparison of the two statutes. This reading is confirmed by the Supreme Court’s discussion of the decision below, which states only that “the Sixth Circuit held this case is not controlled by Glickman .” United Foods , 533 U.S. at 409. Even more illustrative is the Supreme Court’s conclusion in United Foods that “[t]he only program the Government contends the compelled contributions serve is the very advertising scheme in question.” Id. at 415. The decision to invalidate the advertising provisions of the Mushroom Act by definition resulted in the invalidation of the entire statute.
It would contort congressional intent if we were to take a statute that seeks entirely to promote a particular product and then strain to preserve the purportedly non-promotional provisions of that very statute. And the Supreme Court does not require that we do so. The district court was correct in striking down the entire Pork Act.
NOTES
[*] (cid:45) A NN M. V ENEMAN , Secretary, The Honorable Myron H. Bright, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation. 1 Nos. 02-2337/2338 Mich. Pork Producers Ass’n, 3 4 Mich. Pork Producers Ass’n, Nos. 02-2337/2338 et al. v. Veneman, et al. et al. v. Veneman, et al. GROUP, INC., St. Paul, Minnesota, for Defendants. Edward promotion under the Pork Act violates the First Amendment, M. Mansfield, BELIN LAMSON McCORMICK ZUMBACH the injunction ordered by the district court is overly broad in FLYNN, Des Moines, Iowa, Robert Charles Timmons, that it eliminates funding for programs that are constitutional.